Karnataka High Court

Siraj Pasha vs The State By Labour Inspector on 2 January, 2024

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                                                      CRL.RP No. 644 of 2015




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 2ND DAY OF JANUARY, 2024

                                            BEFORE
                           THE HON'BLE MR JUSTICE G BASAVARAJA
                       CRIMINAL REVISION PETITION NO. 644 OF 2015
                   BETWEEN:

                   SIRAJ PASHA,
                   S/O CHAND PASHA,
                   AGED ABOUT 30 YEARS,
                   RESIDING AT
                   SANGAM TALKIES ROAD,
                   MULBAGAL - 563 131,
                   KOLAR DISTRICT.
                                                               ...PETITIONER
                   (BY SRI. VIVEK N., ADVOCATE FOR
                       SRI. DEEPAK J., ADVOCATE)

                   AND:

                   THE STATE BY LABOUR INSPECTOR,
Digitally signed
by SANDHYA S       MULBAGAL,
Location: High
Court of           REP. BY S.P.P.,
Karnataka
                   HIGH COURT OF KARNATAKA,
                   BANGALORE - 560 001.
                                                              ...RESPONDENT
                   (BY SRI. M.K. PATIL, HCGP)

                        THIS CRL.RP IS FILED U/S.397 OF CR.P.C PRAYING TO
                   SET ASIDE THE JUDGMENT DATED 24.9.2012 PASSED BY THE
                   PRL. C.J. AND J.M.F.C., MULBAGAL IN C.C.NO.120/2011 AND
                   THE JUDGMENT DATED 30.05.2015 PASSED BY THE PRL. DIST.
                   AND S.J., KOLAR IN CRL.A.NO.56/2012.
                        THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
                   THE COURT MADE THE FOLLOWING:
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                                      CRL.RP No. 644 of 2015




                          ORDER

The accused viz., Siraj Pasha, the revision

petitioner has filed as revision petition against the

judgment of conviction and order of sentence passed by

the Principal Civil Judge and JMFC, Mulbagal in

C.C.No.120/2011 dated 24.09.2012, which is confirmed

by the Principal District and Sessions Judge, Kolar in

Crl.A.No.56/2012 dated 30.05.2015.

2. The rank of the parties in this appeal are

referred to as per their status before the trial Court.

3. The brief facts of the prosecution case is that

on 08.12.2010 at about 12:20 p.m., the complainant

who is the Labour Inspector along with the Labour

Inspectors of Kolar, Bangarapet and K.G.F went and

inspected the garage by name C.S.Garage in Mulbagal.

At that time, he found a child labour by name Imran

Pasha, aged between 10 and 11 years working in the

said garage, which is an hazardous industry and the

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accused being the owner of the garage has employed the

labour. Then the complainant has prepared the spot

note and also obtained statement of child labour and

accused has not produced any documents in respect of

the age of the child labour. The copy of the inspection

note was given to the accused and he has acknowledged

the receipt of the same by signing on the same. The

complainant also conducted spot panchanama at the

spot and then took the child labour to the Government

Hospital, Mulbagal and obtained the medical certificate.

The dentist has certified that child labour was aged

between 10 and 11 years. Subsequently, the child

labour was admitted to Government Urdu Higher

Primary School and he has issued notice dated

21.12.2010 to the accused, but the accused has not

replied. Hence, he has filed a complaint against the

accused for the commission of offence punishable under

Section 3 read with Section 14 of Child Labour

(Prohibition and Regulation) Act, 1986.

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4. After taking cognizance against the accused,

the case was registered in C.C.No.120/2011 and

summons was issued to the accused. In response to the

summons, the accused appeared before this court and

was enlarged on bail . Substance of plea was recorded

and accused pleaded not guilty and came to be tried.

5. To substantiate the case of the prosecution, 3

witnesses were examined as PW1 to PW3 and 12

documents were marked at Ex.P1 to Ex.P12. On closure

of prosecution side evidence, statement of the accused

under Section 313 of Code of Criminal Procedure, 1973

was recorded. The accused has denied the evidence of

prosecution witnesses, but he has not chosen to lead

any defence evidence on his behalf .

6. On hearing the arguments, the trial court has

convicted the accused for the commission of offence

punishable under Section 3 read with Section 14 of

Child Labour (Prohibition and Regulation) Act, 1986 and

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sentenced him to undergo Simple Imprisonment for a

period of six months with a fine of Rs.15,000/-. In

default to pay fine, accused shall undergo Simple

Imprisonment for a period of three months. Being

aggrieved by the judgment of conviction and order of

sentence, the accused viz., Siraj Pasha has preferred an

appeal before the Principal District and Sessions Judge,

Kolar in Crl.A.No.56/2012 and the same was dismissed

on 30.05.2015. Being aggrieved by the dismissal of the

appeal and also conviction and order of sentence passed

by the trial court, the revision petitioner has preferred

this appeal.

7. The learned counsel for the revision petitioner

has submitted his arguments that the trial court has

wrongly convicted the petitioner based on the witnesses

who are all the government employees and there is no

independent and private witnesses to support the case

of the prosecution. The child labour is not examined

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before the trial court. There is no eyewitness to show

that the petitioner has employed child labour. Further,

it is submitted that if this court has come to the

conclusion that prosecution has proved its case, then

this court may modify the order of sentence by imposing

fine only, the revision petitioner has already paid the

fine amount. Further he submits that the revision

petitioner is not involved in any offences prior to this

alleged commission of offence. Hence, on this ground he

sought for modifying the sentence passed by the trial

court.

8. As against this, the learned High Court

Government Pleader has submitted that the judgment

and order of sentence passed by the trial court is in

accordance with law and that there are no grounds to

interfere with impugned judgment of conviction and

order of sentence passed by the trial court, which is

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confirmed by the appellate court and hence, sought for

dismissal of the revision petition.

9. Having heard the arguments on both sides

the following points would arise for my consideration:

(i) Whether the revision petitioner/accused has made out the grounds to modify the order of sentence passed by the trial court?

(ii) What order?

My answer to the above points are as under:

Point No.(1) : Affirmative,

Point No.(2) : As per final order.

Regarding Point No.1:

10. I have carefully examined the materials

placed before this Court. In para 13 to 18 of the

judgment, in Crl.A.No.56/2012, the learned Principal

District and Sessions Judge has observed as under:

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"13. It is the specific case of prosecution that, on 08.12.2010 at about 12.20 p.m., the complainant who is a labour inspector the garage by name C.S.Garage in Mulbagal belonging to accused/appellant and found that, the child labour by name Imran Pasha was being employed by accused on daily wages of Rs.10/- who was aged between 10 and 11 years and he has prepared the spot note there itself. It is also alleged that, when the complainant inspected garage, initially the accused was not present there and subsequently he also came there and copy of inspection note was furnished to him. The accused has not produced any documents regarding age proof of employed child labour Imran Pasha and in spite of issuance of notice, he has filed to reply the said notice and thereby it is alleged that, the accused has committed the offence under section 3 r/w section 14 of Child Labour (Prohibition and Regulation)Act, 1986.

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14. As per the case of prosecution, the complainant has got examined child labour Imran Pasha from Government Hospital, Mulbagal and obtained certificate regarding his minority. PW1 Akmal Pasha is the Headmaster of school wherein the child was initially studying and further after the incident, the child was again re-admitted to the said school. He has deposed regarding readmission of child on 10.12.2010 at the request of complainant. Nothing was elicited so as to impeach his evidence and his evidence is only regarding the child was again admitted to the school and in this regard he issued Ex.P1 acknowledgment. It is also important to note here that, Ex.P1 is not seriously disputed. Further, no suggestion is made that the said child is aged more than 14 years.

15. PW2 Yogendra Prasad is the medical officer who has treated the child and he being a dentist, on the basis of examination of teeth of child, he has

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issued certificate that the child is aged between 10 and 11 years. Much cross- examination is made regarding non- production of X-ray and it is only suggested that, the child was aged between 14 to 16 years. But, the said suggestion came to be denied. It is for the accused to prove that, the child labour is aged more than 14 years as on the date of alleged inspection. Admittedly, the child was studying in Urdu school and birth extract of the child is available. If the said child is more than 14 years, nothing was prevented the accused from obtaining his birth certificate and to produce same before court, but no such attempt has been made.

16. PW3 is the complainant/labour Inspector. He has deposed regarding visiting the garage of accused on 08.12.2010 at 12.20 p.m., and tracing the employment of child labour Imran Pasha. He has also deposed that, one saleem Khan was also present and at that time,

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the accused was not present and was proceeding with the enquiry, the accused did came there and while on enquiry he did not produce any records regarding the age of child and he has also deposed that, he prepared a report as per Ex.P3 and furnished a copy of the said report to accused and obtained acknowledgment. It is important to note here that, Ex.P3 is the inspection report and it is signed by the accused. The accused has not at all denied his signature on Ex.P3. Further, his cross-examination reveals that, it is a simple formal denial and nothing more. A simple suggestion is made that, the complainant never inspected the said premises and no panchanama was held. No suggestion was made that the garage does not belong to accused. Further, no suggestion is made to this witness that, the child labour Imran Pasha was not working in the establishment. These material denials are missing in the cross -

examination of PW3, PW2 in his examination in chide has given details

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regarding his investigation and a simple suggestion is made that, he never visited the premises. But employment of the child and minority of child is not denied in the entire cross-examination.

Further, PW3 specifically deposed that, he has recorded the statement of child labour as per Ex.P4 and it is also signed by the accused. The accused has not denied this aspect and he has not even denied that, the child has given any statement as per Ex.P4 and he has not received any such copy of Ex.P4. Ex.P5 is the panchanama. Ex.P7 is the statement of father of minor child and this document is not even denied, denying that the father of child labour has given any such statement. Ex.P10 is the certificate of registration of C.S Garage with labour department and this registration certificate is valed from 20.06.2009 t 31.12.2013. It is standing in the name of accused. Hence, Ex.P10 clearly discloses that, it is the accused who has obtained the necessary licence from Labour Department to run the garage.

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17. Under section 16 of the Act, the complainant who is the Labour Inspector is empowered to lodge the complaint. Under section 2 sub-clause (2), the child is defined as a person who is not completed the age of 14 years. In the instant case, admittedly the medical evidence establishes that, the child is aged between 10 and 11 years. Further, under section 16 (2) of the Act, every certificate as to the age of child issued by prescribed medical authority is conclusive evidence. In the instant case Ex.P2 is the certificate issued by medical officer as per the provisions of section 16 (2) of the Act. Hence it is a conclusive proof unless the contrary is proved, admittedly no contrary evidence is placed. The accused has not even denied that, he is running C.S. Garage and he has not even denied the employment of child labour and not even denied the age of child. Under such circumstances, he has contravened the provisions of section

3. as the section 3 prohibits employment of

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child below the age of 14 years in any occupation as referred in Para (A) of schedule of the said Act.

18. VIII entry of schedule (A) deals with automobile workshops and garages and as such since the accused is running C.S.Garage, it falls under VIII entry of schedule (A) and the employment of child below the age of 14 years is prohibited. Section 14 deals with penalties in this regard. On assessment of entire evidence, it is clear that, considering the defense of accused, which is of formal in nature, the learned magistrate has assessed the evidence and held that prosecution has discharged its burden of proving guilty of the accused. Though it is argued that, Ex.P3 and P4 are not proved, it is to be noted here that, the accused has not disputed his signature on Ex.P3 and Ex.P4. Even he has not disputed his presence at the time of drawing Ex.p3 and Ex.P4 and PW3 specifically deposed that, initially the accused was not present, but

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subsequently he came there and this part of evidence is also not challenged. The citation relied upon by the learned counsel for appellant in this regard does not come to the aid of appellant/accused as the facts and circumstances are entirely different and in the instant case, the evidence of complainant is not seriously challenged by the accused and there is no denial regarding his ownership as well as employment of child labour including the age of child. Hence, the oral as well as documentary evidence clearly establishes that, the prosecution has proved the guilt of accused beyond all reasonable doubt. The learned magistate has considered the oral as well as documentary evidence in proper perspective and analyzed the evidence in proper way by applying the proper procedure of law. He even considered the statement of PW1 that subsequently again the child Imran Pasha did not attend the school though the complainant has re-admitted the child to the school. Hence, considering the menace

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as a deterrent measure, he has proceeded to impose the sentence of imprisonment and fine. At no stretch of imagination, the judgment of conviction and order of sentence can be said to be illegal or erroneous, so as to call for interference. Further, the accused has not challenged the quantum of sentence, but he has disputed the entire judgment of conviction itself."

11. On re-appreciation/re-examination and re-

consideration of the entire evidence on record, I do not

find any legal infirmity/illegalities in the impugned

judgment of conviction passed by the trial court, which

is confirmed by the appellate court.

12. With regard to the sentence imposed by the

trial court is concerned, the trial court has sentenced

the accused to undergo Simple Imprisonment for a

period of six months and to pay a fine of Rs.15,000/-. In

default of payment of fine, the accused shall undergo

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Simple Imprisonment for a period of three months. The

order sheet of the trial court reveals that the accused

has already deposited the fine amount of Rs.15,000/-

vide receipt number 0766053 dated 11.12.2012.

13. It is appropriate to mention here as to the

provision of Section 14 of the Child Labour (Prohibition

and Regulation) Act, 1986, which reads as under:

14 Penalties. --

(1) Whoever employs any child or permits any child to work in contravention of the provisions of section 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with both.

14. The appellate court has observed in para 18

of the judgment that accused has not challenged the

quantum of sentence, but he has disputed the entire

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judgment of conviction itself. Now the revision petitioner

counsel has sought for modification of the sentence by

imposing fine only. That there is no material to show

that the accused has been previously convicted for any

offence including the alleged commission of offence. It

appears that the alleged commission of offence is the

first offence.

15. Considering the nature and gravity of the

offence, age and occupation of the accused, it is just

and proper to modify the sentence of fine. Accordingly, I

answer point No.1 in the affirmative.

Regarding Point No.2:

16. For the aforesaid reasons and discussions, I

proceed to pass the following:

ORDER

(i) The judgment of conviction passed by the trial court under Section 3 read with Section 14 of Child Labour

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(Prohibition and Regulation) Act, 1986, which is confirmed by the Civil Judge and JMFC, Mulbagal in C.C.No.120/2011 dated 24.09.2012, which is confirmed by the by the Principal District and Sessions Judge, Kolar in Crl.A.No.56/2012 dated 30.05.2015 is confirmed.

(ii) The sentence passed by the trial court is modified as under:

(a) The accused shall pay a fine of Rs.15,000/-.

              (b)   The   fine          amount    already
                    paid by the accused vide
                    receipt     No.0766053         dated
                    11.12.2012 shall be remitted
                    to the Government.